United States v. Marchetti

• Decision Date: 11 September 1972
• Docket Number: 72-1589.,No. 72-1586,72-1586
• Citation: 466 F.2d 1309
• Parties: UNITED STATES of America, Appellee, v. Victor L. MARCHETTI, Appellant, (Two Cases).
• Court: U.S. Court of Appeals — Fourth Circuit

466 F.2d 1309 (1972)

UNITED STATES of America, Appellee, v. Victor L. MARCHETTI, Appellant, (Two Cases).

Nos. 72-1586, 72-1589.

United States Court of Appeals, Fourth Circuit.

Argued May 31, 1972.

Decided September 11, 1972.

Certiorari Denied December 11, 1972.

COPYRIGHT MATERIAL OMITTED

Melvin L. Wulf, New York City (Sanford Jay Rosen, John Shattuck, New York City, American Civil Liberties Union Foundation, and Philip J. Hirschkop, Alexandria, Va., on brief), for appellant.

Irwin Goldbloom, Atty., Dept. of Justice, (Harlington Wood, Jr., Asst. Atty. Gen., Walter H. Fleischer, and Daniel J. McAuliffe, Attys., Dept. of Justice, on brief), for appellee.

(Irwin Karp and Osmond K. Fraenkel, New York City, on brief), for The Authors League of America, Inc., amicus curiae.

(Edward C. Wallace, Marshall C. Berger, Heather Grant Florence, and Weil, Gotshal & Manges, New York City, on brief), for Association of American Publishers, Inc., amicus curiae.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

Certiorari Denied December 11, 1972. See 93 S.Ct. 553.

HAYNSWORTH, Chief Judge:

The question for decision is the enforceability of a secrecy agreement exacted by the government, in its capacity as employer, from an employee of the Central Intelligence Agency. Marchetti contends that his First Amendment rights foreclose any prior restraint upon him in carrying out his purpose to write and publish what he pleases about the Agency and its operations. Relying on a secrecy agreement signed by Marchetti when he became an employee of the Agency and on a secrecy oath signed by Marchetti when he resigned from the Agency, the District Court ordered Marchetti to submit to the Agency thirty days in advance of release to any person or corporation, any writing, fictional or non-fictional, relating to the Agency or to intelligence and ordering him not to release any writing relating to the Agency or to intelligence without prior authorization from the Director of Central Intelligence or from his designated representative. Marchetti was also ordered to return any writing or other property of the United States he had acquired while employed by the Agency.

We affirm the substance of the decision below, limiting the order, however to the language of the secrecy agreement Marchetti signed when he joined the Agency. We find the contract constitutional and otherwise reasonable and lawful.

This action was initiated on April 18, 1972, when the United States was granted an ex parte temporary restraining order against Marchetti by the District Court. A hearing was set for April 28, 1972, on the Government's motion for a preliminary injunction. On April 21, 1972, Marchetti moved to have the District Court dissolve the temporary restraining order. After that motion had been denied, an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) was sought in this court. After oral argument, this panel denied the request for an interlocutory appeal and for writs of mandamus and prohibition, but directed the United States not to interfere with prospective witnesses for Marchetti. Counsel for Marchetti subsequently sought a postponement until May 14, 1972 of the hearing on the preliminary injunction. In granting this postponement, the District Court ordered the trial on the merits consolidated with the hearing on the motion for the preliminary injunction. The trial, held on May 15, was followed on May 19, 1972 by the District Court's Memorandum Opinion and Order granting the injunction sought by the United States.

Marchetti was an employee of the Central Intelligence Agency from October 3, 1955 until he resigned effective September 5, 1969. The positions he held included the post of Executive Assistant to the Deputy Director. When he joined the Agency, he signed a secrecy agreement promising not to divulge in any way any classified information, intelligence or knowledge, except in the performance of his official duties, unless specifically authorized in writing by the Director or his authorized representative.¹ Marchetti also signed a secrecy oath when he resigned from the Agency in 1969.²

After his resignation, Marchetti published a novel, entitled The Rope Dancer concerning an agency called the "National Intelligence Agency." Marchetti has also published an article in the April 3, 1972 issue of the magazine, The Nation. Entitled "CIA: The President's Loyal Tool," the article criticized some policies and practices of the Agency. In March, 1972, Marchetti submitted to Esquire magazine and to six other publishers an article in which he reports some of his experiences as an agent. According to the United States, this article contains classified information concerning intelligence sources, methods and operations. Marchetti has appeared on television and radio shows and has given interviews to the press. He has submitted to a publishing house an outline of a book he proposes to write about his intelligence experiences.

I Jurisdiction

Jurisdiction arises from the presence of the United States as a party. 28 U.S.C. § 1345. "The government can sue even if there is no specific authorization. In such cases, however, it must have some interest to be indicated sufficient to give it standing." C. A Wright, Federal Courts 68 (2d ed. 1970), ch. 3, § 22. Standing arises from the government's interest in protecting the national security.³

II The Freedom of Speech and of the Press are not Absolute

Marchetti claims that the present injunction is barred by the Supreme Court decision in the Pentagon Papers case because the Government has failed to meet the very heavy burden against any system of prior restraints on expression. New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822.

We readily agree with Marchetti that the First Amendment limits the extent to which the United States, contractually or otherwise, may impose secrecy requirements upon its employees and enforce them with a system of prior censorship. It precludes such restraints with respect to information which is unclassified or officially disclosed, but we are here concerned with secret information touching upon the national defense and the conduct of foreign affairs, acquired by Marchetti while in a position of trust and confidence and contractually bound to respect it.

In order to protect freedom of speech and of the press, the First Amendment has been applied beyond its express terms, which were directed solely to Congress:

"The first amendment provides that `Congress shall make no law * * * abridging the freedom * * * of the press,\' and there has been common disposition to apply the amendment to the Executive and the courts as well. Citing: Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 143 -144, 71 S.Ct. 624, 95 L.Ed. 817 (Black, J., concurring), 199 , 71 S.Ct. 624 (Reed, J., dissenting) (1951); Watkins v. United States, 354 U.S. 178, 188 , 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 , 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). See also Beauharnais v. Illinois, 343 U.S. 250, 386 , 72 S.Ct. 725, 96 L.Ed. 919 (Douglas, J., dissenting) (1952); Reid v. Covert, 354 U.S. 1, 17 , 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). But the import of the first amendment is as uncertain and undefined in regard to the freedom of the Press as to the other rights and freedoms that it protects, and, indeed, the courts have had far fewer occasions to define the freedom of the Press, than, say, freedom of speech." Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U.Pa.L. Rev. 271, 277 (1971).

Nonetheless, "free speech is not so absolute or irrational a conception as to imply paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights." Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (Frankfurter, J., dissenting).⁴ In applying the First Amendment to actions taken by the judicial and executive branches, the Supreme Court has followed a flexible approach. As Mr. Justice Brennan wrote in Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506:

"It is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Ill., 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press."

Threats and bribes are not protected simply because they are written or spoken; extortion is a crime although it is verbal. The Supreme Court has also upheld the Labor Board's attempt to protect employees from spoken coercion by employers. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-619, 89 S.Ct. 1918, 23 L.Ed.2d 547. The "government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, 1367. Cf. Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. This flexible approach toward the executive and judicial branch is warranted not only because they are omitted from the express language of the First Amendment, but also because they lack legislative capacity to establish a pervasive system of censorship. This case itself illustrates the point that the executive and judicial branches proceed on a case by case basis, the executive branch being dependent on the judiciary to restrict unwarranted disclosures.

An earlier case upholding a government request to enjoin publication involved the Valachi...